Midterm Review 1

 Lawyers have ethical obligations that are required by the organizations to which they belong.  Lawyers are “members of the bar”, which means that they have satisfied the requirements of the state lawyers’ association (called the “bar”) where they practice law:  Education – prior and continuing  Passing a bar exam  Character  Payment of fees 2

 Titles  Doctor, Esquire, Partners, Associates, Staff Lawyers  Bar membership  Lawyers have to be members of the bar of the state(s) where they are licensed to practice  Lawyers can become members of the American Bar Association and other national bar associations (National Bar Association or Federal Bar Association, for example)  Non-practicing lawyers (judges, professors, investment advisors) can be Associate Members of the ABA 3

 ABA Model Rules of Professional Conduct  ABA cannot discipline members, state bar associations discipline members  Has issued the Model Rules for state bar associations (which can discipline members) to consider and adopt  Relieves state bar associations from having to create rules for professional conduct  Lends consistency to rules for professional conduct from state to state 4

 Paralegals assist lawyers in the tasks that they must perform, but are limited in that they cannot offer legal advice to clients, cannot draft documents for clients unless the documents are approved by the lawyer, and cannot represent clients in court.  Paralegals who do not work directly for a lawyer can perform services for their employer (for instance, they can render advice to their employer and can draft documents for their employer) but they cannot represent parties in court (but they may be able to represent their employer in administrative hearings) 5

6  Ethical requirements for paralegals  ABA ethical standards apply indirectly to paralegals (if a paralegal violates and ethical standard that applies to the lawyer, the lawyer can be held responsible)  Associations for paralegals  National Association of Legal Assistants  National Federation of Paralegal Associations  National Association of Legal Secretaries  American Association for Paralegal Education  All advocate ethical standards for paralegals, legal assistants, legal secretaries

 ABA Model Rules of Professional Conduct  Begins with terminology  Divided into 8 sections dealing with different aspects of the practice of law  Client-Lawyer Relationship  Counselor (advice)  Advocate (representation)  Transactions with Persons Other than Clients  Law Firms and Associations  Public Service  Information About Legal Services  Maintaining the Integrity of the Profession 7

 The general rule is that the practice of law is limited to those who are licensed after satisfying certain state requirements of education, moral character  Certain knowledge is necessary to properly advise people of the legal consequences of their actions  Licensing exposes those who are licensed to the control of the bar associations 8

 Unauthorized practice of law - whether an unlicensed person is engaged in an activity that  is one traditionally practiced by lawyers;  is one “commonly understood” to involve the practice of law;  requires legal skill or knowledge beyond that of a layperson;  is characterized by the personal relationship between lawyer and client; or  is such that the public interest is best served by limiting performance to those who are lawyers 9

 Non-lawyers (especially paralegals) potentially practice law when they:  1. give legal advice – distinguish communications from lawyers to clients  2. create legal documents for others – reviewed by lawyers  3. represent others in court – legal assistants who don’t work for lawyers 10

 “Incidental to” – activities that are similar to legal services that are performed incident to some business:  Real estate documents prepared by title companies/real estate agents  Estate planning by banks and insurance companies  Debt collection (foreclosures) by creditors  Tax practice by accountants 11

12  Lawyers cannot aid others in the unauthorized practice of law  Improper supervision  Improper delegation  Improper business relationships  Fee splitting arrangements

 Confidentiality – keeping information obtained from a client or on behalf of a client secret (not disclosing that information to others  All information – whether it’s good or bad, whether it’s from the client or obtained for the client  Relating to the representation – difficult line- drawing here (everything may relate to the representation of the client)  From all sources – not just the client 13

 Attorney/client privilege  Similar to the requirement of confidentiality  Means that the lawyer cannot disclose to anyone the information that the lawyer received directly from the client – the lawyer cannot be forced to testify or disclose that information in a deposition  Only applies to information that is not available from other sources  Can be waived by the client 14

 Exceptions to requirement for confidentiality  1. Necessary disclosures  2. Waiver by client  3. Defending against a client  4. When the disclosure itself constitutes the commission of a crime  5. When the disclosure is about a crime that will be committed 15

 Work product rule  The work product of a lawyer cannot be subpoenaed or obtained by the other side of a dispute, including a prosecutor  Information created by or for a lawyer in connection with the representation of a client  If the prosecution can convince a court that it cannot obtain the work product information from any other sources, a court might order the discovery of work product 16

 Sources of conflicts  Lawyers represent more than one client at a time  Obligation of confidentiality  Obligation to do your best for every client 17

 ABA Model Rule 1.9 – legal professional may not:  a. represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or  b. use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known. 18

 Champerty – a lawyer buying a claim for damages from the injured party  Chasing injured parties for representation  Advertising for clients  Advancing money for clients (exceptions)  Funding lawsuits by non-lawyers  Contingency fees 19

 Gifts from clients  Publicity rights  Can’t obtain publicity rights from a client  What about legal professional’s own publicity rights? 20

 Representing corporations  Corporations are legal entities, but they act through people  Legal professional has duties to the organization through its designated representatives  Legal professionals have to be aware of what those representatives are doing/intend  Conflicts between the organization and the people who represent it 21

 What to do in the event of a conflict of interest  See it coming and don’t get involved  Stop the potential client as soon as the hint of a conflict arises  Disclose it to everyone and resign unless everyone agrees that you can continue 22

 Conflicts within a law firm or lawyers’ association  “Chinese walls” – ethical walls 23